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LIBRARY OF CONGRESS 


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D 570 """"x" I SENATE \ ^"""?r 

'KOI- ( } No. 434 

. 8 

.C4 02 

Copy 1 

JIVIL LIBERTY IN WAR TIME 



PAPER 

lESENTED AT THE FORTY-SECOND ANNUAL MEETING 
OF THE NEW YORK STATE BAR ASSOCIATION 
HELD IN THE CITY OF NEW YORK ON 
JANUARY 17 AND 18. 1919 



By 

JOHN LORD O'BRIAN 

THE SPECIAL ASSISTANT TO THE ATTORNEY GENERAL 
FOR WAR WORK 




PRESEN1 ED BY MR. CALDER 
February 26. 1919.— Ordered to be prialed 



MASHINGTON 

COVERNMLNC PRINTING OFFICE 

1919 






n. 0f ». 

HAH 2S 1919 



/ 



CIVIL LIBERTY IN WAR TIME. 



In disfiissiny tlii-- Inpic tin- writer will ((iMlim' hiiii>c'lf to observa- 
1 ions drawn from I'xix'iit'ncc us head of the War Emergency Division 
• if till' I)p|>«rtnu'nt of .liistiiv and, therefore, will enter into no dis- 
lUbsion of the topic as atfeeted iiy tl»e work of the Alien Property 
Ciistodiim or the aetix ities of the Postmaster (Jeneral. Within these 
limitation^ it <ri\e.- me plea>iire as a memher of this assoiMation to 
disen>s with fellow lawyers the administration of civil law by Federal 
uuthoritie> iliirinji the time that we have been at war; for the record 
of law enforcement and of the promnlf/fution of policies in this field 
is one made entirely by lawyers. 

WitJj the perspective of years no achievement of the Americans 
in tlie war will loom larger or more sipnificant than the triumph 
of American civil law, the lack of internal disorder and the law- 
respe<tin<; attitude observed throu'rhnut the country by both citi- 
zen ami alien alike. No other nation came tiiroiiph the struggle with 
<) little di.-order and with so little interference with the civil liberty 
<d the individual. IIow much this was due to our remoteness from 
the fields of warfare, how much it was due to the instinctive habits 
of our people, and how much it was due to respect for punitive law 
arc now matters of conjecture. It is for the future to ascertain ac- 
curately the explanation; but no historical ajipraisement will leave 
out of its reckoning <'on>ideratii'n of the attitiule of Attorney (lencral 
(Jregory and his department. There is no other de])artment of the 
(lovernment wliose activitii's during the war have more nearly 
affected the life and habits of the citizen; none has lieen so fully 
re-.ponsible for the protection of the I'oie^titutional and civil rights 
of the citizen — and, it may ite ailded in passing, no other depart- 
ment iuis receiveil Mich a pleiutude < f advice from the citizen. 

It was apparent at the outlet that the pn)cesses of the civil law, 
framed for a»lministralion in peace times and under normal condi- 
tions. Would necessarily be viewed with im|)atience and discontent 
in times of pas~ion and excitement ; and it was evident in the light of 
jia.st experience that eilicient administratifui of the civil law was the 
i.nly alternative to rule by military tribunals in case conditions of 
general disorder should at any time arise. Early in the war certain 
principles were definitely decided upon. Those principles were ad- 
iiercd to by the Department of Justice throughout the war ami the 
policy formulated at the beginning remained unchanged to the end. 
This policy was ba.sed U])on the confidence felt in the law-abiding 
' haracter of our citzens and the <nnvi<tion that in this country it was 
\ery generally recognized that liberty meant obedience to law, self- 
control and sol f -restraint ; and that in every part of the country the 

3 



4 CrVIL, LIBERTY IN WAK TIME. \ 

strongest deterrent influence against disloyalty was neighborhood 
public opinion. It was the view of the department, therefore, that 
there should be no repression of political agitation unless of a char- 
acter directly affecting the safety of the State; that the constitutional 
guaranties protecting life and property must be strictly enforced, 
and that under no circumstances should the military or naval au- 
thorities be permitted to do anj' act which would arbitrarily interfei'e 
with the life and habits of the individual citizens. And, further, 
that protection of the innocent was at all times a correlative duty 
with punishment of the guilty. 

The American Government entered the war with substantially no 
law on the statute books affecting the conduct of the individual ex- 
cept the treason statute, which proved well-nigh useless, and the in- 
ternment statute, which affected only alien enemies. Not only is this 
true, but during our entire participation in the war Congress, except 
for the selective-service act, passecl only four short statutes which in 
any substantial way affected the conduct of the individual. The 
original espionage act as presented by the Department of Justice 
prior to the declaration of wai- was not adopted until June 15, 1917, 
at which time it became a law in a somewhat modified form; and no 
amendment was made to it for 11 months. The sabotage act, punish- 
ing interference with the manufacture of war munitions, although 
presented to Congress upon our entry into the war and almost imme- 
diately passed by the Senate, did not become a law for 14 months; 
and the so-called passport law, aimed to control the frontiers against 
spy activities, recommended to Congress by the President in Decem- 
ber, 1917, did not become a law until May. 1918. These instances are 
cited not as instances of culpable delay on the part of Congress, but 
to emphasize the fact that the Department of Justice throughout the 
war had limited powers and. during the first year of the war, entirely 
inadequate powers. 

In striking contrast to our situation was that of the British Em- 
pire. Within a few weeks after the outbreak of the gi-eat war, 
Parliament enacted the Defense c^' the Realm act, prepai-ed in ad- 
vance by a committee of experts,^ The outstanding feature of this 
act was to vest executive powers of the largest scope in cei'tain civil 
officials, so that an entire code of both substantive and administra- 
tive law was early promulgated and enforced throughout the war, 
with such changes from month to month as conditions made advisable. 
In addition to the lack of adequate war statutes here early in the war, 
another defect in our law administration came from the fact that 
prior to our entry into the war tlie few statutes aimed to prevent 
breaches of neutrality were most inadequate. In cases arising mider 
these statutes, which came on for trial after we had entered the war, 
even where the maximum penalty was inflicted, the public were justly 
critical and discontented with what seemed to them to be a misca?-- 
riage of justice. On several occasions offenders were prosecuted and 
convicted under the provisions of the Sherman Anti-Trust Act be- 
cause no other statute could be found with which to reach their 
activities. 

In short, on the law side, this country, prior to our entry into the 
war, had on the statute books almost no protection against hostile 
activities, and throughout a great part of our own period of war 



CIVIL LIBERTY IN WAB TIME. 5 

had inadoquute protection against the artivity of hostile projja- 
jjandists. The confidence- of tlie jxiblic, wliiih is at nil times essential 
for the onlerly administration of justice, was seriously alTecled by 
this conilition of tiie statute law. But tliciv were other contributinfif 
causes as well which fjready intensilied this situation, raused dissatis- 
faction with civil procedure, and at times imperileil the maintenance 
of public confidence. Of these causes, the chief was, of course, the 
universid prevalence of war emotion, which naturally intensified with 
the progress of the war. 

Curiously, one of the chief embarrassments caused by this general 
<-onditi(>n "as the spy mania. Throughout the coiuitrv a numl)er of 
large iirgani/.ations and societies were created for tlie purjjose of sup- 
pn-ssing sedition. .Ml nf them were the oulgrowtii of good motives 
and manned by a high type of citizens. The mend)ei'shi]i of these 
i'.ssocialions lan into the hinidreds of thousands. One of them carried 
full page advertisements in leading |>apers from the Atlantic to the 
Pacific, otTering in substance to make every man a spy chaser on the 
payment of a dollar mend)ei>ihip fee.' These associations did much 
gooil in awakening the pul>lic to the danger of insidious propaganda, 
but no other one cause contributed so much to the o])i)rcssion of inno- 
cent men as the systematic and indiscriminate agitation against what 
was claimed to be an all-pervasive system of German espionage. .One 
unpleasant fact continually impres-sed on my associates and myself 
was the insistent desire of a very large number of highly intelligent 
men and women to become arms of the ."secret Service and to devote 
their entire time to the patriotic purpo.se of |)ursuing spies. This 
army of volunteer nnoflicial s|>v chasers stands in contrast to the 
eiKMinous armv of civilian volunteers who patiently and unostenta- 
tiously devotetl their fidl energies to the constructive work of aiding 
their country by helping in the Ked ( los.s. the war charities, and 
numy other branches of wur activity. For obvious reasons it was im- 
possii>le for those in authority to make at any time a statement as to 
tlie probable extent of the spy system maintained in this country by 
our i-nemie.s. It is still too early to disclose the truth on that subject. 
Nevertheless, it may Ik- now said, without detriment to the public 
interest, that any suggestion that the centi'al governments had an 
organization of I'lMi.ddO spies in this country is nonsense. 

One other aspect of this agitation is jjcrhaps of more interest to the 
[)sycho|ogist than to the student i>f civil rights, namely, the large 
number of fal.so stories of enemy activities within the United States, 

'Th» •nmo plK-nnnn-nn, Id a mori- nKKrnvntml form, chnmctorlznil thf lust di'cnde of 
tho fUhlrouUi oiitun* ■■> Knsland lmni<'illnli>l>' followInK tlip croolR of the Frcncb RoTO- 
lutl-" 

'h' «Dlrlt of Ihi* tlnir«. dnfiffproiM to the Ilhortv of Iho 
prv" ■ ,■ llfr. Voluntar.v Boclotlfn wptp ostnbllshod In I.on- 

■'■ ' '*'■• piiri>o*p of nldtni; the cxpctitlvc flovornmont In 

wrlllrii: or Inticuaso. • • • Thone Bocli-tlo«, 

'■*>• In <-oll»-otlni: evidence of RPdIrloiifl dost^nH, 

■ ...n of '•'■ ■-■'•'» "f Informor**. Mtifrnllv fwiirdt'd 

- It wrri', 1 cutorfl, Biippl.vlne tho Oovorn- 

•<'». and ■; f.i ronl In Iho prosecution of 

• •'"• '•'"'■ ' "' •* the tavern was re- 

p«»rl tlon. 

whl-'h the fVown la 
.1 I- ,1,1.. repreaenK^d by 

hilt here the 

•lef*. to eolloct 

_ ...;. : . ■ soeletjeR asHlHt 

111 '■ 1 of Jiintirc an Juryni-ii uixl juritlre<, nf tlif p«'ai-e? In the coun- 

trjr liable to be warped." (May'a Conatltiillonal IIlHlory, toI. 2, 

pp. . . 



b CIVIL LIBERTY IN WAR TIME. 

put forth through the medium of press dispatches, pamphlets of pa- 
triotic societies, and occasionally speeches on the floor of Congress. 
A phantom ship sailed into our harbors with gold from the Bolshe- 
viki with which to corrupt the country; another phantom ship was 
found carrying ammunition from one of our harbors to Germany; 
submarine captains landed on our coasts, went to the theater, and 
spread influenza germs; a new species of pigeon, thought to be Ger- 
man, was shot in Michigan; mysterious aeroplanes floated over Kan- 
sas at night, etc. Then there were the alleged spies themselves — 
Spoerniann. alleged intimate of Bernstorff, landed on our coasts by the 
V-53, administrator of large funds, caught spying in our camps, who 
turned out to be a plumber from Baltimoi'e. Several other alleged 
spies caught on the beaches signaling to submarines were subsequently 
released because they were in the several cases honest men, one of 
whom had been changing an incandescent light bulb in his hotel 
room, another of whom was ti-ying to attract the attention of a 
passer-by on the beach, etc. There was no community in the country 
so small that it did not produce a complaint because of failure to 
intern or execute at least one alleged German spy.^ These instances 
are cited not to make light of the danger of hostile activities, nor to 
imply that incessant vigilance was not necessary in watching tlie 
Gerjnan activities, but to show how impossible it was to check that 
kind of war hysteria and war excitement which found expression in 
impatience with the civil courts and the oft-recurring and false state- 
ment that this Government showed undue leniency toward enemies 
within our gates. 

In no field was this temper more evident than in the attitude cre- 
ated by these unofficial organizations toward unnaturalized Germans 
and Austro-Hungarians thi'oughout the countrj'. Early in VaA war 
these people were naturally regarded by the public as the largest 
potential element of danger in this country. The expression " alien 
enemy," used in the old internment statute of 1798 to describe these 
unnaturalized residents, in and of itself carried the impression of 
hostility to this country. Thousands of intelligent citizens and some 
important newspapers continually advocated the internment indis- 
criminately of all alien enemies, i^id no amount of statistics on their 
loyalty or of good conduct on the part of this large class of persons 
seemed to have the efl'ect of lessening the agitation. They were under 
suspicion by the majority of their neighbors in every community; 
they were the subject of incessant investigation at the hands of police 
officials and amateur detectives, and the extent to which their normal 
lives were interfered with can only be a matter of conjecture. 

No other policy so clearly and sharply difl^erentiates America from 
the other nations at war as the attitude which it took on the subject 
of interning enemy aliens. It was a policy not fully understood, 
and in the earlier period was freely criticized ; but I venture to say 
that of all of the policies advanced by this Government in the war 
no other pays a higher tribute to the American ideal of justice, and 
I believe that the verdict of the future upon this policy will be 
one of unconditional commendation. For in a time of war, while 
punishing offenders severely, we found it possible to close our ears 

'According to a recent press report purporting to give an oBicial statement by tht- 
British Government, only 12 spies were executed In Great Britain during the war. 



CIVIL LIBERTY IX WAR TIME. i 

to insensate clamor aiul to perpetuate the American standards of 
fttir play. 

No previous war had presented on ii large scale the problem of 
inipri.soninfj or rcpniatinfj the conduct of noncombatant civilians 
of enemy origin. CJreat Hritain embarked in a policy of internment 
early in the war, and (he great dii^or^ler whicli follows | thi' sinking 
of the Lusitiiiiiii resull<'d in tiie ministry interning mo^t of liie enemy 
aliens in liie British Isles.' Later, in 191S. owing to another intense 
public agitation on tiie .'iulijec't. althougii it was stated that oidy 
about rj.OOO were still at large (many of wiioiii wer' alien enemies 
only in a technical .sen.si). Parliament was compelled by pui)lic sen- 
timent to adopt more stringent measures looking toward the intern- 
ment of many of these remaining aliens. Tn Krance practically all 
enemy aliens were intermd ilown to the sjiring of 1!U8. Both of 
these nations were in close juxtaposition to the central empires. In 
both of them the (i(>rnuin sjjv system was thoroughly organized, and 
it is not for »is to discuss or appraise the correct n(>ss of their deci- 
sions. There is no doubt tiiat this process of inteninient was a 
costly one. In addition to the loss to industry the expense of main- 
taining the large internment camps was a very serious item. Suitable 
work iduid Ih' found for only a fraction of the jjcrsons interned, and 
the bulk of them, living in idleness, degenerated jihysically, mentally, 
and morally to such an extent that an observer of the conditions in 
several well imiintaiiieil foreign internment camiis recently stated to 
the writer that, when leleased, the inmates of these camps, wher- 
ever they might go, woidd be a social liability and source of danger 
and permanent detrinu-nt to the comnninity. 

In .Vmerica the pmidein of the alien enemy was different. We had 
uppioxinuUely ."lOO.OOO unnatuiali/.ed (iermansand |)robably Ix'tween 
;5,0(M».(HMI and 4,iKK),0(IO Austro-IIungarian--. These person.s played a 
part in essential industries which could not lie ign<u'ed — the (Jermans 
In the ^killed trades and (he .ViiNtro-IIungarians in certain other 
industries, such a> steel manufaclui-c and coal mining, to an extent 
whicii nuide (iio-e indn-ilries \irlually dependent on (heir labor. 
Secret instructions from the (lerman foi'eign ollicc and othei' informa- 
tion which came into our jios.se>i<i<)n early in the war showed that 
lifter the lii-st few months of the war the (lerman foreign office 
cea.se«l to employ many (ierinan citizens in this country in espionage 
work, but endeavonnl to employ in this work, for obvious reasons, 
poi-sons who were either citi/.en> of this country or who belonged to 
the S4>-called friendly alien clasM-s. During the lirst three years of 
the gn'at War our various branches of the Secret Service had bwn 
cIom'In watciiing (he ac(i\i(ies of (he (ierinans in (bis country who 
were .seeking; to interfere with any aid to the French or British. It 



' ■ - Hiiti! to liavo rt'^nltt'il from tin* dlsordiTH 

nO'i I iliirlns llilii pprlod. In 1010 thrrc wns a 

Jr« - ' !>■ I'ns fr,,in Oio mlfldU' of .Iiiiio to 

th* I*^*ranio nIino<^t n mi'naco 

lo I I under the li'adprship of 

tT" ...; .'iipmy allfii'). llit' lm'c|Jn>; 

n i -traiitit) iIuti- dtirln;; tho wnr. while 

• In '.; to kIvc uttornnco to tills domnad. 

Tti- - Cininiiiiis drntlni; with the 8iilO''ot, 

whi iti'd (hat lo nlncf fl whoh'snle 

rhii lid. .xlKiiit till- Rnmn llnii> Sir 

Oe> :i ,, r that splfx had not Ihmti found 

Min ■ -I f- w wi-.'k!* of thi- war. N"'V«*rthe- 

Irp' inlwiry w<-rt- rompi-llod to promise a 

n'» . , y of Internment for tbo future. 



8 CrVIL LIBERTY IN WAB TIME. 

was in the light of these facts, and particularly because of the data 
gathered through the channels of the Secret Sei-vice, that the At- 
torney General recommended to the President that certain restric- 
tions of movement and employment be placed upon German aliens 
generally, but that only those he interned who should be found to be 
dangerous or a menace to the safety of the country. That policy, 
promulgated on the day we entered the war, remained in essence un- 
changed to the end. Its wisdom finds confirmation in the convention 
which was made between the French and German Governments in 
April, 1918. I'nder the terms of this convention the French and 
German Governments practically abandoned their previous policy of 
wholesale internment by agreeing to repatriate such aliens as desired 
to return to the respective countries and to permit certain others to 
remain under limitation as to residence and surveillance. 

The American Government, as stated, embarked upon an entirely 
diiferent and well-considered policy, for in the first proclamation on 
the subject, made the day of our entry into the war, the President, in 
providing a set of restrictions to govern the conduct of German alien 
enemies and in providing for the internment of the dangerous, added 
the following important declaration : 

" So long ns they sliall coinliift llieinselves in iicc-oivlance with law, thoy 
.siiall be unc1istuii)e(l in tlie peacol'ul pursuit of tlieir lives anil occupations 
and be apcorileil the consideration due to all peaceful and law-abiding persons, 
except so far as restrictions may be necessary for their own protection antl for 
the safety of the United States ; and towards such alien enemies as conduct 
themselves in accordance with law, all citizens of the United States are enjoined 
to preserve the peace and to treat them with all such friendliness as may be 
compatible with loyalty and allegiance to the United States." 

The authority for this and the subsequent proclamations came from 
the so-called Internment law, passed by Congress in 1798, now em- 
bodied in section 4067 of the Revised Statutes, and by Executive order 
the President conferred upon the Attorney General plenary power to 
enforce and administer these proclamations. This law was passed by 
Congress during the period of the excitement caused by the intrigues 
of Genet and his French associates in this country — at a time when 
it was supposed that war with France was imminent. The powers 
conferred by the statute were used to a limited extent by the Presi- 
dent during the War of 1812, and in 1817 the statute received judicial 
construction at the hands of Mr. Justice Bushrod Washington, sitting 
as circuit judge and reviewing the earlier decision of the Pennsylva- 
nia Supreme Court. (1 Peters C. C. 466.) It then passed into a 
state of obsolescence, remaining unused until April 6, 1917, when 
the country was made a>vare of its existence by the announcement of 
the President's proclamation and the statement that during the night 
of April 6 a group of the chief dangerous German agents had been 
quietly apprehended and interned by the action of the Attorney 
General. 

In the light of what we now know it is fair to say that the drastic 
action thus taken so quietly and promptly, followed quickly by other 
internments, wrecked the German espionage system and gave it a blow 
from which it never fully recovered. So far as internal order is con- 
cerned, this statute was the most useful of all laws in preserving the 
safety of the country and preventing enemy activities: its impor-- 
tance can not be exaggerated. In addition to its usefulness as di- 



CIVIL LIBERTY IN WAK TIME. 9 

recti'd npiiinst tlie ulioii enemy, it was made the foundation for the 
entire cudv of aihniiiistrativo l;i\v under whicli prohibited and re- 
strieted areas were crealed thiniijrhoiit tjie eountry, the most, far- 
reachiiifj and valiialde use bein<; the creation and maintenance of the 
protected water-front zone system in ail towns along the seacoast.' 

The exercise of the power of internment is an anomaly in American 
law, the nearest analogy to this power being tlie statutory procedure 
provided for tlie deportation of an alien after hearing, provision for 
review, etc The power was exiiaordinary in character not only 
beeaus*' of the absence of statutory pi()< cdure. but because of the 
settled judicial ruling that the exercise of this power was not open 
to judicial review l)y habeas corpus or otherwise, except as to the one 
question of the status of the petitioner. This ruling has been fol- 
lowed in the only three cases which have thus far arisen during the 
war, the court confining itself to the question of fact as to whether 
or not the pei-son detained was an alien enemy and therefore subject 
to tlie exercise of this powei'.- 

It was obvious that in times of great public excitement, with the 
atmosphere everywhere charged with suspicion and rumoi-s, the 
exercise of this extraordinary power would be subject to grave abuses 
unless pro|)erly .safeguarded. The fact that under the Trading with 
the Kneniy act an<l the pmelaniation of Febiuary .">. 1918. the juris- 
dii-tion of the .Mien Pro])erty Custodian automatically extended to 
the j)r()perty of individuals ordered interned increased the necessity 
for caiffnlne^s.-' No other law so ,s(>riou-ly affected civil liberties 
and civil rights. On the one hand, it was necessary that this power 
of interiinieiit be used ])romiitly. drastically and relentlessly. On 
the other hand, with no provision for juilicial review, there was 
always danger of mistake in individinil ca.ses. With these consider- 
ations in mind the .\tl<>rnev (ienei'al de\ i.sed a system of informal 
proceiluro under which presidential warrants for preliminary deten- 
tion of suspicious persons were issued promjitly and liberally in 
prima facie ca.ses of complaint for cause. With the suspected person 
once in custotly, ca.s<'s were investigated with the aid of practically 
ail iiianclies nf the .Secret Sei-x ice ami recoiiimeiulations were called 
for from the Federal law oflicer and special agent of the jiartiodar 
locality as well as frum various reviewing law officers in the depart- 
ment at Washington. Over 6,000 cases were submitted to the Attor- 



' I '!« wprp |irnha>lti'il from appronclilDK, without an official 

piiii.< 'tf .'itHi t.ttiH litinh'M iir iiv.-i- iilrtni: iln» tniiri- spju'onst of 

«'■ ■ " '■' ' '■ -' • n'Idi' huDilrpd thousand photo- 

I'.'irlmi'nt, nnd this syalom of 

'-. In 4o M'npnrt-j iho War 

1 ,.......-, .-. . .,, i,.-j,..., .-liii.il irnopA to pntrol cHiwchilly 

i.tniatliin tho flpnnrtnii<nr nnnnunrf?d thnt it wn« the duty of 

' '""- ' •' ' ' • ' '■• 'vnr tiino to proridp additional 

: wt^re \mho6 upon the nnsiimp- 
' nimii* Uiom ct-insur^TH \vUi» 

iicy woro vory erpat nnd 
' ii-rfront 8liii>plni! proi>- 

' '■■ ">• "■' I'l Inioront 

■ way of 

~. nnd la 

, , .:;. , ; -^.t Attor- 

: r*» (ImolMT. Clnvton. J. : ro Unnnlnff. Nowmnn, J.) 

II. t II.. Ii.r!-,h. II..T. ..f IhK .VUnn I'r"portv ("iKfo- 

■'I'rty ownoil hy lnt<^rned 
tlH' vnlur of upwnrfl of 

»_. ;.:irMlinnt to tlio nnthorily 

oanfrrrrd U|H>ti hlin liy tlir prucUaitttluD »( l-'i.-l>. u, lUli>. 



10 CIVIL LIBERTY IN WAR TIME. 

iiey General, in a great number of which the individuals were in- 
terned, the remainder being released on parole, under restrictions as 
to h:il)itat and surveillance. Df the number released on parole less 
than 1 per cent ever came again under complaint. Although intern- 
ment cases wei'e treated always as open cases for the reception of 
further proof, comparatively few individuals, once interned, have 
subsequently been released. 

The curious anomaly in our jurisprudence presented by the exer- 
cise of this power is iiltistated by the attitude of the general public 
on the subject. To insure its fullest value as a deterrent to hostile 
activities, it was essential that, so far as possible, particularly during 
the early part of the war. instances of the exercise of this power 
should be kept secret. Information in the hands of the Department 
of Justice proved that this was a correct theory. On the other hand, 
after the first six months of the war, an enterprising press kept the 
public fully apjirised of every instance of internment, together with 
guesses as to the cause. Fortunately, most of the most dangerous 
enemy aliens had been interned during the early period and the origi- 
nal German espionage system, so far as systematically organized, was 
successfully broken up before this policy of publicity interfered 
with it. 

VVIiether more or fewer individuals should have been interned de- 
pends largely upon one's individual view of the danger to be appre- 
hended from alien enemies. In England and Canada a considerable 
number of officials were vested with power to intern ; in England 
eight different departments being concerned with the administration 
of that power. In this country the power was vested solely in the 
Attorney General, and the reviewing law officer who supervised in- 
ternments had the advantage of being the law official in closest toucli 
with the operations of the Secret Service. 

In the view of the writer the distinctly American policy of intern- 
ing only dangerous noncombatant civilians of the enemy country 
under the procedure above described must necessarily have consider- 
able effect in the futiire in shaping the rules of international law 
relating to the status and treatment of these persons.^ 

In giving high and well-deserved praise to the military authorities 
who devised and put into operation the draft machinery, it should 
not be overlooked that practically the entire administrative work of 
selecting and raising an army was accomplished through civilian aid. 
The mere fact that the actual work of selecting the Army was done 
not by military men but entirely by civilians brought to the support 
of this drastic statute the whole public opinion of the country. 

Not only is this true, but all legal questions arising in the work of 
selecting and mustering in men were tried and disposed of liy civil 
courts on arguments presented by the civilian Federal law officials, 
and, more than this, it was the Department of Justice and not the 
military authorities who did most of the work in apprehending de- 

1 In point of fact, the experience of the nepartnient showed that disloyal utterances and 
activities were quite as common among naturalized citizens as among alien enemies. Un- 
like the British Government, we had no special le^al procedure provided for the cancella- 
tion of their naturalization papers. Resort was had. however, to the fraud section of the 
existing naturalization act, and a number of cases were brousht and successfully carried 
to a conclusion upon a theory nf constructive fraud, i. e., alleging that the subsequint 
disloyal conduct of the naturalized citizen was evidence that at the time of obtaining 
natui'alization he did not honestly renounce alleainnce to the enemy Oovernments. Kni- 
lowing the wide publicity given to several early decisions on both the Atlantic and raeitle 
coasts under which such naturalization papers were canceled, there was a marked sub- 
sidence of these disloyal utterances, and activities among naturalized citizens. 



CUTL LIBERTY IN WAR TIME. 11 

sorters.' This statute had the eflFcct of making practically every 
fnniily in the land a partner in the great national enipri?e in behalf 
of human liberty. It was the great outstanding achievement of the 
dfinocratir spir^ in the war. It is notliing sliort of amnzing. for 
instance, that in raising an army of approximately 3.000,000 men 
only about 3,r>00 were reportetl to the War Department because they 
rosi'-led the application of the law as ''conscientious objectors," and 
of these cases nine-tenths were eventually <lispose(l of in a manner 
satisfactory to the military authorities. There is also another phase 
of tbi~ law III 111' ii>i'siilrri-i| !i'-iilc< its -ni'cc-^- as a military measure. 
From its essential character and operation it became the great stabil- 
izing factor on wliich rested that public opinion which controlled 
and made clTccti\i' all of tlic .Vnicrican aciivities during the war. No 
ant' draft pnt|':iir:'iidn bad tlti- sbirbti'^t cbapcc of -iicccss. After tiio 
draft act went into active operation the power of the so-called Ger- 
man propaganda rapidly declined and within six months lost all 
degree or etfectiveness. Secret service reports demonstrate this be- 
yond doubt and also show how impossible it was, after the first six 
immtlis of our jiarticipation in the war, for the enemy governments 
to nicomplish anything here in a large way through the operations of 
spies or secret agents. The operation of the statute cleansed, dari- 
titd. ami unilied public opinion in support of the war and had the 
I'oMtiiinitii.' rtbct of miiiinii/inir in the Dopidar mind the etTect of 
all interferences with civil rights and civil liberty. 

It is at present prolib-inatical how much interfeieiK c with civil 
libertie- of iiidi\i'luaN ii'sidte<l from the operations of the American 
."^••«Ti'l ."^crviie. The large-t division of this service was that oigan- 
ized by the Department of Ju^^tice. having as an auxiliary the Ameri- 
can Protective I.,<'ague. with membei-ships scattered tbrougliout the 
country. .Mthouirh the remarkable work of the latter organization is 
worthy of the hiuliest praise. Iwilh the .\ttoruey General and the 
writer ari' •itpugly ojiposed to any system of citizen espionage in 
peace time, and the organization above mentioned is already in the 
process of dis.siilution. It is not premature to say that the work of 
the .Vmerii-an Secret .Service was extraordinarily ellicient, and a com- 
petent fiii-eijni observer is probably correct in saying that this coun- 
try had during the war uncjuestionably a more eflicient and better 
orgjinized sccn*t service than any other nation in the world. But a 
service urminized in this manner manifestly included a large mem- 
l>ors|iip nf persons not familiar with criminal ))rocedure anil varying 
widelv iti individual capabilities ami judguK iit. This characteristic 
Was true not oidv of the service mentioiUMl. but also in a measure of 
the mendN'rvhi|i of the Military and Naval Intelliirence forces, both 
of which wei-e n>markably well oflicered and intelligently managed. 
Our difficulties lay not in the supervision of these .servicers, but in the 
patriotic /.enl of many of the subordinates in the field. At times 
thev made nusfnkes which could not be condoned, as. for instance, on 
th< n of the slacker canvass at New Ycuk City, where the 

nil! i|)loyed were in contravention of sj)ecific instructions of 

the .\n..rney (ieneral. 

I?ur in this field again citizens everywhere seemed to understand 
tho object of these activities and good-naturedly submitted to all 

11 ■ I nnil hnd Inductcil Into drtual mUl- 

tar- till niimlHT so Inducted during tbe 

wh> ■ 1 



1^ CIVIL LIBERTY IN WAR TIME. 

sorts of inquiries about their business and private affairs. It is prob- 
able that when the full history of this side of Government activity 
can be made i^ublic the individual cases complained of will prove in 
genei'al to be cases of annoyance rather than of actual wrong done the 
individual. Organized espionage on a large scale is at variance with 
our theories of government and, as I have said, except as a war 
necessity, was not favored by the Department of Justice. 

Although the Attorney General, so far as possible, employed his 
powers to secure the protection of civil liberties, nearly all cases where 
outrages were committed against individuals lay outside the scope of 
Federal jurisdiction. During the various Liberty loan drives, the 
campaigns for war charities, and the loyalty drives many complaints 
of ill treatment and coercion were received by the Attorney General 
from people against whom assessments had been levied by non-legal 
bodies who fixed and collected subscription quotas. Considering the 
extent of the country and the extremely patriotic temper of the 
l^eople, it is perhaps remarkable that greater injustice was not done. 
Nevertheless some of the instances reported, isolated as they were, 
were cases of outrageous wrong for which no relief could be afforded 
by the Federal Government. 

It may fairly be said that the one serious gap in law enforcement 
was this field of wrongs done individuals for which no redress could 
be given by the Federal Government. The Bisbee deportation case 
(which had no relation to the war) is the most conspicuous example. 
As United States Circuit Judge Morrow, in refusing jurisdiction, 
said : 

The situation is indoi'd a lamentable one and one greatly to be deplored, 
but it ought not to influence this court to enlarge a statute to include an of- 
fense not within its constitutional authority. 

Owing to local conditions of intensive patriotism aixl the fact that 
those wronged were often aliens or persons vmder a cloud of supposed 
disloyalty, it was difficult for them to secure redress at the hands of 
their local authorities. The one large outstanding fact which most 
affected the enforcement of law throughout the war was that the 
public looked upon the war as the Nation's affair, and not only lay- 
men but the local law officials looked to Washington for the righting 
of all wrongs, whether they were disloyal utterances, hostile activi- 
ties, or overzealous patriotic activities. Taken by and large the 
number of cases of seriously wronged individuals was negligible; 
but at that, the number was too large. In a constant endeavor to 
alleviate this situation the Attorney General frequently appealed 
directly to governors and to local State officials, urging the necessity 
for resolute compliance with law and for the remedying of indi- 
vidual cases of complaint;' and in July, 1918, the President issued 



^ " The Dopartmont of Justice is notivoly engaged in the prevention and detection of dis- 
loyal acts and the prosecution of violations of the various war statutes. • • • The 
department deprecates unjust and unfounded criticism or suspicion of citizens or aliens 
who are lawabidinf; and loyal, and certainly it should not come about that by unwar- 
ranted suspicion such persons should be caused loss of business, loss of employment, or 
other loss. 

" The Federal statutes punishing seditious acts, malicious destruction of property and 
other war crimes, and the alien enemy laws and regulations are being and will be rigidly 
and agressivcly enforced and the penalties prescribed for their violation imposed without 
exception, but "no possible good will come from any unnecessary hardships or discrimina- 
tion inflicted by private citizens upon those alien enemies who remain law-abiding and 
loyal or from a'nv such hardships or discriminattons unjustly inflicted upon loyal citizens 
of the United States." * • * (Open letter of Attorney General to Judge S. H. How- 
ard, of Georgia, May 23, 1918.) 



CIVIL LIBERTY IN WAR TIME. 13 

an open appeiil to tlip roiintrv dcpiTcatinp disorder and urgrinir all 
Anioricans to aid in bringing their country through the war without 
dislionor. 

Still another eause whieh from time to time created serious discon- 
t<?nt and greatly encouraged, in certain sections of the country, im- 
patience with atlininisl ration of the civil law, were the local conflicts 
arising out of the activities; of organi/atinn'^ of a semi-])olitical 
character like the Noii-l'artisan I^-ague and the vaiious (iranges, 
and of other organizations— such as the I. W. W. The Xon-Partisan 
I^icagne. as a political factor, was strongest in the two Dakotas and in 
Minnesota. This league had its origin in a distinct economic griov- 
an<'e, and within the territory in which it was active it was clearly 
the manifestation of widespread agrarian discontent. Both ])rior 
and .sul>s(M|Mcnt to i>ur entry into the war its managers were actively 
engaged in extending its inenil)ei-~hip in the States named and in 
the ailjcining States, with the result that i)itterness and factional 
prejudice iK-iween them and the rejircsentat i\es of the other political 
parties steadily increaM'd in infensitv. Without entering into the 
di9cu.ssion as to the loyalty or <lisloyalty of some of the early leaders 
of this movement, it would be unjust to question the patriotism or 
honesty of the great mass of its meml)ership. The movement is in 
I . learly a class movement. Piior to our entry into the war, 

i-s of this organization and of some of the .Slate Granges 
111 the lar northwest, making their appeal to the farmei-s, vigorously 
opposed our entry into the war, painting \ ividly tiie hori"ors of war, 
the economic advantages to the farmer of keeping out of war, the 
C'hrislian duty of not killing others, etc. The.se argumtnits could 
n()t liut create a laUMit attitude of opposition to the war. which 
i-emained after our entry into the war, grounded perhaps in pacifism 
rather than in disloyalty. The attitude of these peisons after wo 
entered the war, Incause of their jiosition prior to that event, made 
them the subject of attack on every side. 

Hecan.sc of consiilerations of local politics a mo-t comjdex and 
troublesome situation n-^ulled in the States referred to. in which 
p-eat strain was placed upon those cliarged with the administration 
of justice, whether Federal or local ollicials. It was particularly 
troublesome to the Federal authorities because of the incessant pleas 
on the one hand ftu' the i)iotection of these people in the exercise of 
wiiat they claimed was legitimate political agitation, and, on the 
other hand. tJie demands of their political opjionents for indis- 
criminate proM'cutiiui. The duty of the Federal ollicials was to en- 
force the law. but the great ditVicidty presented was that of ol>taining 
unpivjudiced statements of fact and disent.'ingiing fragments of evi- 
dence from statements inghly cohu-ed with partisan emotion. The 
Attorney (Jeneral adhered to ilie policy that tlic Federal Law De- 
partment would insi.st tipon the fundamental doctrine that guilt was 
pei-sonal and would not lend it.self to proscribing'any class of indi- 
viduals as a cla.ss. Furthermore, the law machinery of the Federal 
(lovenunent is not intended or ada|)ted for the maintenance of local 
order. In the .*^tate of Minnesota, because of what was claimed to 
be either inadeqinite Federal law or insufficient Federal administra- 



14 CIVIL LIBERTY IN WAK TIME. 

tion, State laws of a sweeping character were passed and enforced 
with severity. Whether justined or not in adopting this policy of 
repression, the result of its adoption increased discontent and the 
most serious cases of alleged interference with civil liberty were re- 
ported to the Federal Government from that State. Our view was 
that, while cases of individual guilt must be prosecuted with severity, 
class movements can not be controlled or moulded by indictments: 
arbitrary repression or interference too often adds to their dynamic 
force. But unfortunately the con.structive teachings and arguments 
of persuasion necessary to deal with movements of this character 
were not at any time in evidence in these disturbed districts of the 
coimti'y. 

The general condition in the grain-producing States was intensi- 
fied by the traditional hostility of the farmer toward the commercial 
interests of the cities — a phase of agrarian discontent usually 
summed up in the claim that the townsmen profited unjustly at the 
■ expense of the producers. This steadily showed itself in many rural 
districts in a form of hostility toward State, county, and local coun- 
cils of defense which, it was claimed, were usually dominated by 
business men, the boards of trade, commercial clubs, etc. It is too 
early to appraise the work of these councils of defense and it would 
be wrong to attempt to do so by mere generalization. The diiferences 
between them were almost as many ag the number of the organizations. 
In connection with floating war loans and decrying disloyal sentiments 
they performed services of immeasurable value. On the other hand, 
representing as they did the most intense spirit of local patriotism, 
they interfered with the civil rights of many people, and evidences 
were not wanting that in occasional cases their interference with civil 
rights and civil liberties resulted in serious wrongs. The very fact 
of their being in existence made them listening posts for rumor 
mongers as well as for legitimate complaint. For example, one Fed- 
eral law officer of the Middle West recently informed the writer that 
he had received approximately 3,000 complaints from local councils 
of defense in his territory outof which less than 100 were worthy of 
seriou,s attention. Some of Ihem provoked grave discontent, the 
effects of which can not now be estimated, because of the manner in 
which, without legal authority, they arbitrarily assessed, against 
members of their respecti\'e communities, demand quotas for liberty 
loans, Red Cross, and other war charities. While many isolated cases 
of coercion and wrong wei'e brought to the attention of the Federal 
authorities arising in this field of compulsory subscription, on the 
whole the people, in their customary law-abiding spirit, accepted 
these instances of arbitrary and illegal interference with their civil 
liberties with a .surpri.sing degree of equanimity. Admiration for 
the general spirit of patriotism thus shown obscures the conclusions 
which a law philosopher should draw from this attitude on the part 
of both Americans* and aliens. It may conservatively be said, how- 
ever, that the complaisance with which the whole people submitted 
cheerfully and voluntarily to extra-legal restrictions of this character 
and to interference with their normal civil liberty is without prece- 
dent in the records of organized societv.^ 



1 other and more noteworthy illustrations of this spirit of iiatriofism :irc. of poufsp, 
found in the universal acquiescence by the public in the rpffulatlons promulgated by the 
Fuel Administration for hcatless days and gasolineless Sundays. 



CIVIL LIBERTY IX WAR TIME. 15 

Tlip rfS|K>ctivo cluinis of the loaili-is of tlic fanners' movements and 
their political upiKiiient-; and the ili;irpes and conntercharfres in 
conflicts between emi)l(iyers and employees were matters of daily 
concern to the Depnrtinent of Juhtice throughout the war. A similar 
hilt more intense form of un.xiety w'a.s caused 1)V an orjranization 
of a very different type — tlie I. W. W. — whose activities pervaded the 
entire Pacific coast, as well as the mining States of the West and 
N'oi-tiiwe.st. The welKUnown character of this movement and the 
mena<'e which it olFei's to estal>li>lie(l oi'der precludes necessity for 
e.xlerideti comment here. The conflict hetween its members and the 
forces <if law anil orrler was actite and continuous. It is doubtful 
whether it had any degree of (ierman sujiport. Its motives were 
prinuirily economic rather than seditions. This was illustrated by 
the succe.ss achieved by Col. Distpie in dealing with the I. W. W. in 
the spruce forests, where the members recruited by him and appealed 
to «m the basis of reason accomplishetl a full measure of success in 
lumber production. Xe\ertheless, the logical n-sult of the activities 
of this organization being to cripple industries, those activities in 
nnuiy instances clearly fell within the prohiljition of the l<"ederal law 
and were so prosecuted. The demand from the general public for 
a general jtolicy of discrimination against and repression of this 
organization was most insi.stent and emphatic; but, adhering to the 
gi'noral nttitiido nbovo di.scus.sod, the Attorney (leneral steadfastly 
msi-teil u])on kee|>ing his department within the boimds of its law- 
ful antlKwity, and, so far as was Inmiaidy possible, punished these 
activities upon a basis of individual guilt. 

The foregoing is a sumiiuiry review of the more trying conditions 
which emiiarra.ssed the war activities of the country and imposed 
the heaviest burden upon the Departmeiit of Justice. 

It was with the country in tlie atmosphere above described that 
the laws affecting "free speech" received the severest test tlnis far 
placed upon them in our history. As already .stated, we entered the 
war with sub-tantinlly no Feileral laws attempting to regulate the 
coniluct of the individual during war time other llian the Treason 
statut«> and (he Intcrmuent statute. 'I"he first statute enacted by 
Conpre.Ks which in any way affected utterances by the individual was 
not liirected against disloyal utterances as such. On the contrary, 
it was a statute w hos4' sole aim was to protect the process of raising 
and maintaining our armed forces from the dangers of disloyal 

I>ropaganda. This statute was section '.\ (Title 1) of the so-called 
\spionage net, reading as follows: 

WlicH'viT, wlieii (lie I*iiltc<l States Is iit wiir. sliiill willfully make or convey 
fill*' n'|«irt!« nr fnl«e .statements, witli Intent to Interfere with tlie o|H>ralion oi 
KU«"«>sji of the tnlllltiry or nnvitl fori-«'s of the fnlteil States or to |)ri>mote the 
siioi^-wN of it* eiiemleH, ami wlio<>ver, when tlie t'nite<l Stales Is at war. shall 
willfully i-aiiMe or alteiii|)t to tiiiive in.suhordination. disloyalty, mutiny, or 
n-fuHiil iif iliity In the nillltnry of naval forces of the fiilled States, or shall 

\'"" "• ' • •' - ■ rnltlni: or enlistment servlee of the fnlted States, 

I •• or of the l"nlt<Ml States, shall he |ainlshiHl hy a line 

■ >: ... ' or liniirisoiiniunt for not more than twenty years, or 

Imlh. 

This ua~ -iiiipleiuented by section 1, Title XTT. which aimed to 
jirotect the IVistal Service by declaring nonmailalile all wiitten or 
printed matter which violated any jirovision of the espionage act. 



16 CIVIL LIBERTY IX WAR TIME. 

Throughout the most critical part of our participation in the war and 
until the law was amended in May, 1918, the few sentences above 
quoted constituted, with the Treason statute, the entire bulk of law 
affecting- in any way the unlimited exercise of speech. This law pre- 
scribed no abstract standard of patriotism, loyalty, or obedience to be 
observed on the part of the citizen. It was aimed solely to protect 
the work of raising and maintaining our Army and Navy, and drew 
its authority solely from the provisions of the Constitution, which 
empowered Congress to raise and maintain armies. (Art. I, sec. 8, 
subd. 12 et seq.) In actual operation, and laying aside the charge of 
conspiracy for its violation, the first clause of this section was rarely 
used. The second clause, that prohibiting attempts to cause insubor- 
dination, mutiny, etc., was oftener used, and the third clause, that for- 
bidding interference with the recruiting and enlistment service, was 
constantly used. The evolution of this section presents an interesting 
example of the process of judicial interpretation so commonly charac- 
tei'istic of American courts. At the outset, for instance, there was 
uncertainty as to whether the phrase " military and naval forces " in 
the second clause included only men actually mustered in or whether 
it included also men within the draft ages. This question is now 
before the Supreme Court, but with substantial unanimity the district 
courts have taken the broad view that, considering the general pur- 
pose of Congress, this phrase must be held to include at least those 
registrants between the ages of 21 and 30; many judges going fui-ther 
and holding that it included all men subject to the draft. 

Similarly there was at first uncertainty as to whether the phrase 
" recruiting and enlistment service " included only the technical 
service so known or whether this phrase was intended also to pro- 
tect the operation of the selective-service act. A substantial majority 
of the district courts liave taken the broader view.' The standard by 
which conduct was found to be in violation of the prohiliitions of this 
section was again judicial, not legislative in creation. With a degree 
of unanimity which is extraordinary the lower courts have insisted 
that this slenderly worded section was broadly intended by Congress 
to include every form of activity, by speech or conduct, which was 
willfully intended by direct or indirect means to obstruct the work 
of raising and maintaining the National Armies. 

The proper construction of this section meant that it could not 
reach certain types of propaganda opposing the flotation of war 
loans. The Attorney General, therefore, with the concurrence of the 
Secretary of the Treasury, requested that Congress amplify the 
phraseology of the section to include efforts intentionally nuide for 
the purpose of discrediting and interfering with the flotation of Gov- 
ernment war loans, and requested also that the last clause of the sec- 
tion be clarified by including specifically "attempts" to obstruct the 
recruiting and enlistment service. Upon the presentation of these 
brief amendments in the form of a proposed bill, the Senate Com- 
mittee on the Judiciary, acting on its own motion, decided upon a 
course which resulted in the declaration by Congress of a changed 
and different policy aimed at the suppression of all utterances of a 
disloyal character. Taking as its basis the main features of a law 
passed by the Legislature of the State of Montana, Congress evolved 

'Upheld recently by the Supreme Court (Schenck v. V. S.). 



CIVIL LIBERTY IX WAR TIMK. 17 

iiihI luloptfil ail jiiuc'iuliiicnt to si'ititiii ;l, rolluniiially ealk'il the " swli- 
tioii law." whifli iH-caiiu" ctri-ctivc May 10, litis." 

Tlicrc liati Ix-on much tlomaiid for such a hiw, ha^ed on the argu- 
iiiciit that the war was a national cntcrpri^i-, and that the Federal, 
not the hual. aiithorilie.-^ should properly he charged with suppress- 
ing all types of ilivloyal utterances. 'I'he franiers of tiie aniend- 
nicnt luidiiuliledly had in mind also the fact that this country, except 
for the original -ection 3, had no statute effective against the so-called 
(lernian propaganda. The lueak-u]) of Russia, ilue to this cause, 
the di.saster to tlie Italian armies at Caporelto, and the revelation 
of tiie attempt.s against France in the Holo case all combined to 
awaken this country to the danger to civilization itself from the o|)er- 
ations of what .Mr. (iilhert Murray has called "the monstrous and 
deitauching power of the organized lie." 

The hroad and sweeping character of this amendment is obvious. 
Hecause of many cases now pending under the new law, no comment 
is here nunle upon the wistlom of this enactment or upon the consti- 
tutional t|iU'stions which it suggests. The eiuictment did, however, 
thii>w upon the law machinery of the Federal (Jovernment a great 
bunlen w hich it was ill adapted to assume, ami it increased the tend- 
encv of local |)roseciitors to transfer their responsibilities to the 
Federal nUicials. In the SS districts, even where the standard equip- 
ment was amplilied by the employment of special counsel, it proved 
well-nigh nupo>.sili|e lor the law otlieials to kee]) abreast of the citm- 
plaint- under tliis staiut"- and the icsuli everywhere ti'uded to en- 
courage imj>atience witli the action of civil tribunals, both State and 
FiMlernl. Prior to the enactment of this section isolated disloyal 
ntteratices had In-en treated in many parts of the country as incite- 
ments to di.sorder and had been suunnarilv disposed of mider State 
or iocnl laws providing ptinishment for di.sorderly conduct. While 

"iV ■ ■• ■ ■ I stiili'a In lit wnr, Klinll willfully ninki- or convey 

: iiiti'iit In intiTfiTi' with till' operation or Kurccss ot 

r .r.(l StjitfH. or to [ironiotv till' .'jiHTi'>s of Its I'nrmh-H. 

Mi"**- ro|iorts or fnlHi- fitiiteniontii. or nny or do nnjr- 

'•■ unti n*>t iIIhIoi'iiI mivlrf to iin Inv**Mt»>r or Investors, 

i.v tlo- I'nited sttilei' of liomls or other serurltles of the 

■'. I'liltcil Stalin or to till' I'nlled States, and 

Mlinll willfully eaiise. or Htlempt to cause, 

• •n. diHloyaliy. miitiny, or refiisnl of duty. In 

sinli'H. or iilinll willfully obstruct or attempt 

111' of the lulled StnlcK. anil whoever, when 

uiier, print, write, or puhllsh any dlsloynl, 

, ■■! fhe form of government of tlie United 

^ or ihe inllltitry or naval forces of tho 

I r the uniform of the .\rniy or Navy of 

i..t„.r iijf, form of covernment of the 

-, or the mtlllnry or niival forces 

or till' uniform of th • Army or 

Tii. ;» ,.r illiri-pute, or sholl wlll- 

tni'lii'. provo'd'. or en- 

■ f II » enemlm. or shall 

li'. mti inii' writlne. 

■li'llt of 

-arv or 

■ \. with 

It Ion of 

of any 

ut sup- 

t war or by 

"d by a One 

■ 't : l^rovUtrd, 

■It-* !iny ills- 

■ and violent 

1 he at once 

! of the 

tie dlM- 

■ lal. 
S. I»<>o. 4,1-1, «5-3 2 



IS CIVIL LIBERTY IN WAR TIME. 

this policy must have resulted in many instances in a rather gener- 
ous interpretation of the local laws relating to disorderly conduct, 
there can be no doubt of the effectiveness of thus dealing with offenses 
of this character. This was clearly shown by the results obtained, as, 
for example, in several cities of this State which came under the 
writer's close observation, viz. New York, Buffalo, and Rochester. 
The difficulty, from an administrative standpoint, with the new sedi- 
tion statute was that it covered in all degrees of conduct and speech, 
serious and trifling alike, and, in the popular mind, gave the dignity 
of treason to Avhat were often neighborhood quarrels or barroom 
brawls. Whether this was offset by the admittedly efficacious and 
st«rn justice administered through the Federal courts is a question 
for the future to decide. 

We had a clear idea of the results which would follow from the en- 
forcement of this statute, and immediately upon its enactment the 
Attorney General issued to all United States attorney's a circular, 
warning Federal law officers against dangers of alnise under this law.^ 

The general publicity given the statute through the newspapers 
and in many cases through employers who circularized their em- 
ployees with copies of the act (calling attention to the dangers of 
strike activities), fanned animosities into flame, vastly increasing the 
amount of suspicion and comjalaints throughout the country. This, in 
turn, resulted in a large increase in the amount of jirosecutions, 
backed up by strong local patriotic sentiment. Up to the time that 
this statute went into practical operation the United States attorneys 
throughout the country, except in genuine cases of treason, had each 
acted as the supreme law official of his district, exercising on his own 
account full discretion in all matters as to prosecution. 

As soon as the amended act began to come before the courts for 
construction, however, wide divergence appeared in the theories 
entertained by the various prosecuting officials, evidencing danger of 
conflict in interpretation of the act. to say nothing of the graver 
dangers which had already been apprehended and which we had 
sought to guard against by the issue of the circular last mentioned. 
Entertaining a clear view as to the increase of these dangers, the 
Attorney General, in October, 1918, issued a circular which had the 
effect of ruling that no more cases should be submitted to grand 
juries under the sedition act without first submitting a statement of 
the facts to the Attorney General and receiving by wire his opinion 
as to whether or not the facts constituted an offense imder the act. It 
is conservative to say that the wisdom of this action has been demon- 
strated bej'ond question and, had the war continued, it would have 
been more emphasized. 

iTo ALL United States Attorneys: Inclosed is a copv of the amendment to the 
espionage act just passed by Congress and approved by Ihe President. As you will 
note, it greatly extends the scope of the espionage act and covers m.any different types of 
disloyal expressions. 

The prompt and agsrossivp enforcement of this act is of the highest importance in 
supprrssing disloyal ufteniucos and preventing branches of peace. It Is also of great 
importance that this statute be administered with discretion. It should not be permitted 
to become the mi'dlum whereby efforts are made to suppress honest, legitimate criticism 
of the administration or discussion of Government policies ; nor should it be permitted to 
Ijecome a medium for personal feuds or persecution. The wide scope of the act and 
powers conferred increase the importance of discretion in administering it. Protection 
of loyal persons from unjust suspicion and prosecution is quite as important as the sup- 
pression of actual disloyalty. 

All cases which clearly violate this law should be promptly and vigorously prosecuted, 
but care should be exercised to avoid un.iust arrests and prosecutions. 



l-IVir, MBEKTY IN' WAR TIME. 19 

Tli(> issiio of tliis circnliir typifies the great load of anxiety which 
we boro throughout the war in endt-avoring to preserve witluiut stain 
the (l(nne-tic a(hiiini-tration of hiw ; and it is also suggestive of the 
imriiiMise ori'siiro hroiight to b<'ar Ihronghont the war on the Depart- 
ment fjf .tiisiicc in all parts of the country for indixriniinate prose- 
eutiiin deniamli'cl in hchalf of a jioiicy of wholesale repi-ession and 
restraint of public opinion. lU'caiise of the directions given in this 
circular it has been possible to make n distinction between genuine 
casi's deserving of prosecution and those "clamor'' cases which were 
essa'ntiaily il< tnlnimh, and the Attorney (Jcneral has not hesitated to 
wcpd out and dismi>-s many prosecutions of the latter character. 

Thus far, all of the cases heard on appeal have arisen under section 
3 ns it stood |)rior to amendment. Invariably defendants have chal- 
lenged the constitutionality of tiiat section under the loose claim that, 
as interpreted 1)V the courts, it conflicted with the provisions of the 
fii-st amendment providing that t'ongre^.s sluMild make no law 
abridging fre<"dom of spc-ech or of the press. Receilt decisions of our 
court.«i have intimated that the restraints which it was here intended 
to prohibit Congress from nuiking were laws of prevention and sup- 
pn-ssion having a restraining effect prior to titterance or publication. 
(Patterson r. I'oloiado. I'Df) 1'. .S.. A'A. 4(!-J.) This ruling is. of 
course, con.sonant with the ob>ervatioiis of Rlaclotone and other com- 
mentators on the couunon law. Thus far. however, the Government 
has not advanced this particular contention in support of the section, 
for the reason that the cases thus far pressed by it on appeal have 
Im-ou cases involving direct incitement to disobedience of law. The 
Sufuvme Court has already upheld the constitutionality of the sclcc- 
tiv« -.service net and has also atlirmed the judgments of conviction 
agaiii-t several persons who conspired to dissuade men from register- 
ing or doing militaiy iluty.' 

It has U-en our contention that Congiv^s has likewis«> full constitu- 
tional power to protect the rai-ing of our armies and that the sec- 
tion embrace-- iitteiances or publications wliieh were unlawfully in- 
tended to accompli-h this broad re.-ult indirictly as well as ilirectly. 
We lia\e also contended that tlie true criterion under the original 
M'ction ;5 (asMiming unlawful intent to be shown) is the (|uesti<ai of 
wlu'ther or not the iitterancos; complained of wouhl have the natuial 
ai •' i:d>le effect of producing the i-esiilf aimed at by the statute. 

Tl. r.il contentious haxe received siib.-tant iai approval in the 

loWel iKiirts.- 

'I'lie fa< i that there are now immediatelv pending before the .'^u- 
pivmc Court of the United State- several case- directly involving 
the degive to whii-h spoken utterances of a disloyal character may be 
treated as within the protection of tiie First Amendment constrains 
the writer from entering into a further di.scussion of tliis topic.^ 



• - ' •' ...... 245 y s.. anil; CoMmilD r. M. S,. Id. I"' "^ r r. f. .<t.. 

Id 

11 ih<- .Siippcnii' <'<>iirt ha* held that 1 tidioK the 

U' '11.11 ., i> II.. I protrrtrd bir the Aral omrndnipnt to tl . .1 CoDittltu- 

II. r, I'. »., — U. «. — ; rrohwrrtt c. I . S., — f. S. -- : IH-lw r. f. S.. — 

C 

' --• •' ■■ • •■• •■ ••■■' <'o. r. Patten. C. C. A. II, 

3< 

} hv il.'rI.«lon- In Ihn raNCT* 

b. • -■ ■ '• ' • "rlhv 

ll> lulS- 



20 CIVIL LIBERTY IN WAK TIME. 

The general. policy of the Attorney General toward free speech has 
been well understood and adhered to by his subordinates with a good 
deal of consistency. From the outset, recognizing that free expres- 
sion of public opinion is the life of the nation, we have endeavored to 
impress upon our subordinates the neces.sity for jjeeping within the 
lines of policy established by Congress and bearing in mind at all 
times the con.stitutibnal guaranties. Repeatedly their attention has 
been called to the fact that expression of private or public opinion 
relating to matters of governmental policy or of a political character 
must not be confused with willful attempts to interfere with our con- 
du.ct of the war. At all times we have had before us the dangers 
which follow attemiJts to restrain public discussion and, so far as 
instructions issued by the Attorney General have been concerned, 
they ha\e consistently and at all times emphasized this general 
policy.^ 

It can not be claimed that this policy was adhered to with perfect 
unanimit_y tliroughou.t the c(nmtry. In default of authoritative deci- 
sions by the Supi'eme Court, with 88 Federal districts, each equipped 
with a United States attorney and at least one district judge, and the 
great variety of conditions peculiar to the resjiective localities, it is 
only strange that there did not develoj) greater divergence in the 
character of prosecutions as well as the character of the decisions by 
the lower courts. 

This being the general attitude of the Government, the chief diffi- 
culty on any trial has naturally been the question of what quantum of 
eviclence would, as a matter of law, justify submitting to the jury the 
question of unlawful intent and the question of the reasonable and 
natural result of the utterance complained of. This difficulty has 
been greatly inci'eased by the provisions of the amended section 3, 
which is still to come befcu'e tlie appellate courts for construction. 
It has been quite nnnecessai'y to urge upon the United States attor- 
iieys the inqiortance of ]n'Osecuting ^•igorously. and there has been 
little difficulty in securing convictions from juries. On the contrary. 
it has been necessary at all times to exercise caution in order to secure 
to defendants accused of disloyalty the safeguard of fair and im- 
]>artial trials. In addition to the causes already recited there were 
the patriotic agitations continually being carried on by the liberty 
loan speakers, foui'-mimite men, and others, all of which worked the 
whole country up to a pitch of intense patriotism, resulting in instinc- 
th^e aversion toward anyone even under suspicion for disloyalty. 

A review of the rulings of the coiirts on questions of evidence and 
a scrutiny of the charges to juries will show the future commentator 
that United States district judges were keenly alive to this danger. 
They continually emphasized constitutional rights, gave great lati- 
tude to defendants' proof and urged necessity for the. dispassionate 
consideration of evidence. A conspicuous illustration of this fairness 
on the part of the Federal judiciary occnri-ed in the recent case 

^ ''\ citi'-^en is entitled to fairly criticize men and measures — that is, men in public nflioe. 
wliether of hish or low deprcn — and laws and ordinances intended for the government of 
'he ncople, evrn the Constitution of his Stnte or of the TTnitt^d States : this, with a \-iew. 
l)y the use of lawful means, to improve the public service or to amend the laws by which 
i-e is ijnvernrd or to which he is subjected. Rut when liis crilicism extends or leads by 
^^illful intent to the incitment of disorder and riot or to tlie infraction of the laws of the 
lind or the Constitution of this country, or with willful purpose, to the resistance and 
obstruction of the due execution of the laws by the proper authorities, it overleaps the 
bounds of all reasonable liberty accorded to him by the guaranty of the freedom of 
sp> ech." (Wolverton. .T. ; U. S. v. Ramp.) 



CIVIL UBERTV IN WAJl "HHE. 21 

■ jraiii^t flu- I. W. W. loudors at Chicapo, where, at the conohision of 
a loiifi and i(>iiii)liiate(l trial, the chief couns<'l for (lie defendants 
|inbli(ly coninieuded tlic leni|u'raleness and fairness slunvn them by 
the trial jnd;^e. It shonld lie peeuliurly a source of ^ral ilical ion to 
every lawyer to recall the di-jnity and fairness which in a time of 
crisis characterized the work of our courts in the many trials of 
which the Hindu ca.M' at .San Francisco, the I. W. W. case at Chi- 
cago, the Masses ca.-i- at New York, and the IJerger case at Cliica<ro 
were the most conspicuous instances. Is it loo much to say that the 
•vents of tliese trials have pivcn new strength to the confidence of 
Americans in our jiulicial syst<'m ? 

No full discussion of the subject of civil liberty could be had with- 
out giving consideration to the powers exercised by the Post ( )llice 
neparlmcnt in connect inn with printed matter alleged to be of a 
character in violation of the espionage act. This is particularly true 
U'causc of the amendment to section 4, Title XII, of that act. em- 
bodied in ■' the seilition act " of May, 1918. which, in substance, con- 
ferred u|ion the Postmaster (leneral power to withhold, during the 
War. delnery of all mail from |)ersons or concerns upon evidence 
satisfactory to the Postmaster (Jeneral that such persons or concerns 
were using the mails in violation of the espionage act. These powers 
of the Postmaster ( Jeneral were exer<-is<'d by him alone: the Depart- 
ment of .Iu>lice had no share or part in ailmini^tering them, and for 
that reason no discussion is hi-re made of that tield of war control. 

The attitude of the .Vttorney (leneral opposing the suggestion of 
ndlitarv courts is a matter of common knowledge. That suggestion, 
in the light of subsecpient events, now appears grotescpie. Not oidy 
have we been opposed to any such idea, hut our policy lay dee|)er. 
We were opposi-ij to all and any interference on the pari of the mili- 
tary or naxal authorities with the civil rights and even the habits 
of the average citizen. Hehind the scenes we took freijueiit occasion 
to eiuphasi/e this view which. I may adil. was thoroughly approved 
by the .Secretaries of ^^'ar and X.-ivv. respect ivelv. 

There have been, of course, weaknesses in tlu' operation of our 
legal system, due ihielly to delays in trials and appeals. Others will 
determine how much they were due to actual defects in procedure 
and how- mu'-h to personal frailties. One .serious soiu'ce of trouble 
was clearly due to a ilefect in our judicial [jrocedure long obvious in 
times of peace, which during the war Ix-came a distinct source of 
danger. This defect was the long delay incident to hearing criminal 
cas«»s on appeal and the f;ii-l that after convi<'tion for a flagrant ulTense 
crippling tlie conduct of the war it was po»ible for the defendant to 
(r\ye bail, delay the hearing of his appeal by the customaiy metlK>ds, 
and meanwhile remain at large, causing in most cases <jreat appre- 
hension to the Federal oflicials as well as to the general public. In 
an attempt to rea<'h this situation the .\ltorney Cleneral re(piested 
that I'nited .States attorneys in all .s4'rious cases urge upon the trial 
udge the ^ for hi>ldiiig defendants after convicii<in without 

>nil. In - iiportant < ases the trial judges com]>lied with this 

request, but lievnnd that notliing came of the suggestion. .S«>veral de- 
fendants convii't«Ml during the early summer of 101" are still at large 
on bail, and it will probaldy l)e sjiring or siunmer before the (iov- 
enimeiit can bring their en-- "r> for argument. If we had actually 



i, 



22 CIVIL LIBERTY IN WAK TIME. 

suffered from more disorder this situation would have been a serious 
menace. As it was. the situation gave rise to severe and legitimate 
criticism and was one of the chief arguments urged in favor of the 
establishment of special tribunals for the trial of war offenses. The 
defect was made the more glaring by the fact that Federal courts, 
both trial and appeal, met only at stated intervals; all of them were 
overloaded with work during the war, and delays appear to have been 
granted to counsel by many courts as freely as in times of peace. 
The war is apparently over, but perhaps this illustration may arouse 
some degree of interest in this oft-discussed subject of the weakness 
of procedure in this matter of criminal trials and appeals. 

The foregoing is a bird's-eye view of the subject of civil liberty in 
war time as seen from the standpoint of the Departjnent of Justice. 
It has not been the intention of the writer to draw any inferences 
from the facts recited except those which were outstanding and 
obvious. The ordinary' procedure of our courts functioned well. 
The efficacy of juries as triers of fact has been ome moi'e demon- 
strated in a convincing manner and the highest praise is not too 
much for the Federal judiciary, who, with only a few exceptions, 
taking a broad view of the necessities of the country, still main- 
tained the American tradition of fairness and went to extremes in 
enforcing consideration of the constitutional guarantees. In at least 
two fields — internment of noncombatant civilians and the supposed 
necessitj' for military or other special tribunals in war time — tlie 
record of this period will probal>ly have a distinct effect upon the 
law of the future. 

The opinion of the majoritv of the court in the Milligan case (71 
U. S.,2) declared that: 

The constitution of tlie T'nited States is a law for rulers and people, equally 
in war and in peace, and covers with the shield of its protection all classes of 
men, at all times and under all circumstances. 

Attorney General Gregory and his immediate aides actively sym- 
pathized with this declaration and they were believei's in the efficacy 
of the American system of law administration. It will be for the 
future to determine whether our policies were shortsighted and in- 
adequate, or grounded in considerations of seasoned wisdom. 

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